Western Australia: Education and Care Services National Law (WA)

Western Australia Education and Care Services National Law (WA) Act 2012 Western Australia Education and Care Services National Law (WA) Act 2012 Contents Part 1 — Preliminary 1. Short title 1 2. Commencement 1 3. Terms used 1 Part 2 — Application of Education and Care Services National Law 4. Application of the Education and Care Services National Law 1 5. Exclusion of legislation of this jurisdiction 1 6. Meaning of generic terms in Education and Care Services National Law for the purposes of this jurisdiction 1 7. Relevant tribunal or court 1 8. Regulatory Authority 1 9. Children's services law 1 10. Education law 1 11. Former education and care services law 1 12. Infringements law 1 13. Public sector law 1 14. Working with children law 1 15. Transitional 1 Part 3 — Other local provisions 16. Tabling of annual report 1 17. National regulations under the WA national law 1 18. Review of Act 1 Schedule — Education and Care Services National Law Part 1 — Preliminary 1. Short title 1 2. Commencement 1 3. Objectives and guiding principles 1 4. How functions to be exercised 1 5. Definitions 1 6. Interpretation generally 1 7. Single national entity 1 8. Extraterritorial operation of Law 1 9. Law binds the State 1 Part 2 — Provider approval Division 1 — Application for provider approval 10. Application for provider approval 1 11. Form of application 1 12. Applicant must be fit and proper person 1 13. Matters to be taken into account in assessing whether fit and proper person 1 14. Regulatory Authority may seek further information 1 15. Grant or refusal of provider approval 1 16. Notice of decision on application 1 17. Duration of provider approval 1 18. Effect of provider approval 1 19. Conditions on provider approval 1 20. Copy of provider approval 1 Division 2 — Reassessment 21. Reassessment of fitness and propriety 1 Division 3 — Amendment of provider approvals 22. Amendment of provider approval on application 1 23. Amendment of provider approval by Regulatory Authority 1 24. Copy of amended provider approval to be provided 1 Division 4 — Suspension or cancellation of provider approval 25. Grounds for suspension of provider approval 1 26. Show cause notice before suspension 1 27. Decision to suspend after show cause process 1 28. Suspension without show cause notice 1 29. Notice and taking effect of suspension 1 30. Effect of suspension 1 31. Grounds for cancellation of provider approval 1 32. Show cause notice before cancellation 1 33. Decision in relation to cancellation 1 34. Effect of cancellation 1 35. Approved provider to provide information to Regulatory Authority 1 36. Notice to parents of suspension or cancellation 1 37. Voluntary suspension of provider approval 1 38. Surrender of provider approval by approved provider 1 Division 5 — Approval of executor, representative or guardian as approved provider 39. Death of approved provider 1 40. Incapacity of approved provider 1 41. Decision on application 1 Division 6 — Exercise of powers by another Regulatory Authority 42. Exercise of powers by another Regulatory Authority 1 Part 3 — Service approval Division 1 — Application for service approval 43. Application for service approval 1 44. Form of application 1 45. Regulatory Authority may seek further information 1 46. Investigation of application for service approval 1 47. Determination of application 1 48. Grant or refusal of service approval 1 49. Grounds for refusal 1 50. Notice of decision on application 1 50A. Approval of a place as a family day care venue 1 51. Conditions on service approval 1 52. Copy of service approval to be provided 1 53. Annual fee 1 Division 2 — Amendment of service approval 54. Amendment of service approval on application 1 55. Amendment of service approval by Regulatory Authority 1 55A. Condition relating to family day care co‑ordinators 1 56. Notice of change to nominated supervisor 1 56A. Notice of change of a nominated supervisor's name or contact details 1 57. Copy of amended service approval to be provided 1 Division 3 — Transfer of service approval 58. Service approval may be transferred 1 59. Regulatory Authority to be notified of transfer 1 60. Consent of Regulatory Authority required for transfer 1 61. Consent taken to be given unless Regulatory Authority intervenes 1 62. Transfer may be subject to intervention by Regulatory Authority 1 63. Effect of intervention 1 64. Regulatory Authority may request further information 1 65. Decision after intervention 1 66. Regulatory Authority to notify outcome 7 days before transfer 1 67. Transfer of service approval without consent is void 1 68. Confirmation of transfer 1 69. Notice to parents 1 Division 4 — Suspension or cancellation of service approval 70. Grounds for suspension of service approval 1 71. Show cause notice before suspension 1 72. Decision in relation to suspension 1 73. Suspension of service approval without show cause 1 74. Notice and effect of decision 1 75. Suspension of service approval to the extent that it relates to associated children's service 1 76. Transfer of suspended service 1 77. Grounds for cancellation of service approval 1 78. Show cause notice before cancellation 1 79. Decision in relation to cancellation 1 80. Cancellation of service approval to the extent that it relates to associated children's service 1 81. Application for transfer of cancelled service 1 82. Decision on application to transfer cancelled service 1 83. Approved provider to provide information to Regulatory Authority 1 84. Notice to parents of suspension or cancellation 1 85. Voluntary suspension of service approval 1 86. Surrender of service approval 1 Division 5 — Application for service waiver 87. Application for service waiver for service 1 88. Form of application 1 89. Powers of Regulatory Authority in considering application 1 90. Matters to be considered 1 91. Decision on application 1 92. Revocation of service waiver 1 93. Effect of service waiver 1 Division 6 — Temporary waiver 94. Application for temporary waiver 1 95. Form of application 1 96. Regulatory Authority may seek further information 1 97. Special circumstances 1 98. Decision on application 1 99. Revocation of temporary waiver 1 100. Effect of temporary waiver 1 Division 7 — Exercise of powers by another Regulatory Authority 101. Exercise of powers by another Regulatory Authority — family day care services 1 Division 8 — Associated children's services 102. Application of this Law to associated children's services 1 Division 9 — Offences 103. Offence to provide an education and care service without service approval 1 103A. Offence relating to places where education and care is provided as part of a family day care service 1 104. Offence to advertise education and care service without service approval 1 Part 5 — Assessments and ratings Division 1 — Assessment and rating 133. Assessment for rating purposes 1 134. Rating levels 1 135. Rating of approved education and care service 1 136. Notice to approved education and care service of rating 1 137. Suspension of rating assessment 1 Division 2 — Reassessment and re‑rating 138. Regulatory Authority may reassess and re‑rate approved education and care service 1 139. Application for reassessment and re‑rating by approved provider 1 140. Application of Division 1 1 Division 3 — Review by Regulatory Authority 141. Review by Regulatory Authority 1 142. Process for review 1 143. Outcome of review by Regulatory Authority 1 Division 4 — Review by Ratings Review Panel Subdivision 1 — Application for review 144. Application for further review by Ratings Review Panel 1 145. Form and time of application 1 Subdivision 2 — Establishment of Ratings Review Panel 146. Establishment of Ratings Review Panel 1 147. Review Panel pool 1 148. Procedure of Panel 1 149. Transaction of business by alternative means 1 Subdivision 3 — Conduct of review 150. Conduct of review 1 151. Decision on review by Ratings Review Panel 1 Division 5 — Awarding of highest rating 152. Application for highest rating 1 153. Assessment of education and care service 1 154. Board may seek information and documents 1 155. Decision on application 1 156. Notice of decision 1 157. Reassessment of highest rating level 1 158. Revocation of highest rating level 1 159. Re‑application for highest rating level 1 Division 6 — Publication of rating levels 160. Publication of ratings 1 Part 6 — Operating an education and care service 161. Offence to operate education and care service without nominated supervisor 1 161A. Offence for nominated supervisor not to meet prescribed minimum requirements 1 162. Offence to operate education and care service unless responsible person is present 1 162A. Persons in day‑to‑day charge and nominated supervisors to have child protection training 1 163. Offence relating to appointment or engagement of family day care co‑ordinators 1 164. Offence relating to assistance to family day care educators 1 164A. Offence relating to the education and care of children by family day care service 1 165. Offence to inadequately supervise children 1 165A. Offence relating to children leaving the education and care service premises unauthorised 1 166. Offence to use inappropriate discipline 1 167. Offence relating to protection of children from harm and hazards 1 168. Offence relating to required programs 1 169. Offence relating to staffing arrangements 1 170. Offence relating to unauthorised persons on education and care service premises 1 171. Offence relating to direction to exclude inappropriate persons from education and care service premises 1 172. Offence to fail to display prescribed information 1 173. Offence to fail to notify certain circumstances to Regulatory Authority 1 174. Offence to fail to notify certain information to Regulatory Authority 1 174A. Family day care educator to notify certain information to approved provider 1 175. Offence relating to requirement to keep enrolment and other documents 1 Part 7 — Compliance with this Law Division 1 — Notices 176. Compliance directions 1 177. Compliance notices 1 178. Notice to suspend education and care by a family day care educator 1 179. Emergency action notices 1 Division 2 — Enforceable undertakings 179A. Enforceable undertakings 1 179B. Certain actions prohibited while undertaking is in force 1 180. Certain actions prohibited if undertaking is complied with 1 181. Failure to comply with enforceable undertakings 1 Division 3 — Prohibition notices 182. Grounds for giving prohibition notice 1 183. Show cause notice to be given before prohibition notice 1 184. Deciding whether to give prohibition notice 1 185. Content of prohibition notice 1 186. Cancellation of prohibition notice 1 187. Person must not contravene prohibition notice 1 188. Offence to engage person to whom prohibition notice applies 1 188A. False or misleading information about prohibition notice 1 Division 3A — Disciplinary action 188AA. Persons against whom disciplinary action may be taken 1 188AB. Disciplinary action 1 188AC. Limitation on section 188AB(3)(b) 1 Division 4 — Emergency removal of children 189. Emergency removal of children 1 Part 8 — Review Division 1 — Internal review 190. Reviewable decision — internal review 1 191. Internal review of reviewable decisions 1 Division 2 — External review 192. Reviewable decision — external review 1 193. Application for review of decision of the Regulatory Authority 1 Division 3 — General 194. Relationship with Act establishing administrative body 1 Part 9 — Monitoring and enforcement Division 1 — Authorised officers 195. Authorisation of authorised officers 1 196. Identity card 1 Division 2 — Powers of entry 197. Powers of entry for assessing and monitoring approved education and care service 1 198. National Authority representative may enter service premises in company with Regulatory Authority 1 199. Powers of entry for investigating approved education and care service 1 200. Powers of entry to business premises 1 200A. Entry to premises without search warrant 1 201. Entry to premises with search warrant 1 202. Seized items 1 203. Court may extend period 1 Division 3 — Other powers 204. Power to require name and address 1 205. Power to require evidence of age, name and address of person 1 206. Power of authorised officers to obtain information documents and evidence 1 Division 4 — Offences relating to enforcement 207. Offence to obstruct authorised officer 1 208. Offence to fail to assist authorised officer 1 209. Offence to destroy or damage notices or documents 1 210. Offence to impersonate authorised officer 1 211. Protection against self-incrimination 1 212. Warning to be given 1 213. Occupier's consent to search 1 Division 5 — Powers of Regulatory Authority 214. Powers of Regulatory Authority to obtain information for rating purposes 1 215. Power of Regulatory Authority to obtain information, documents and evidence by notice 1 216. Power of Regulatory Authority to obtain information, documents and evidence at education and care service 1 217. Offence to fail to comply with notice or requirement 1 218. Offence to hinder or obstruct Regulatory Authority 1 219. Self-incrimination not an excuse 1 Part 10 — Ministerial Council 220. Functions of Ministerial Council 1 221. Powers of Ministerial Council 1 222. Directions 1 223. How Ministerial Council exercises powers 1 Part 11 — Australian Children's Education and Care Quality Authority Division 1 — The National Authority 224. National Authority 1 225. Functions of National Authority 1 226. National Authority may advise and seek guidance of Ministerial Council 1 227. Powers of National Authority 1 228. Co‑operation with participating jurisdictions and Commonwealth 1 229. National audit functions 1 Division 2 — The Board of the National Authority Subdivision 1 — Establishment and responsibilities 230. National Authority Board 1 231. Responsibilities of Board 1 232. Membership of Board 1 Subdivision 2 — Members 233. Terms of office of members 1 234. Remuneration 1 235. Vacancy in the office of member 1 236. Acting positions 1 237. Leave of absence 1 238. Disclosure of conflict of interest 1 Subdivision 3 — Procedure of Board 239. General procedure 1 240. Quorum 1 241. Chief executive officer may attend meetings of the Board 1 242. Presiding member 1 243. Voting 1 244. Defects in appointment of members 1 245. Transaction of business by alternative means 1 246. Delegation by Board 1 247. Committees 1 Subdivision 4 — Chief executive officer of the National Authority 248. Chief executive officer 1 249. Functions of chief executive officer 1 250. Terms and conditions of appointment 1 251. Remuneration 1 252. Vacancy in office 1 253. Resignation 1 254. Termination of appointment 1 255. Acting chief executive officer 1 256. Disclosure of interests 1 Subdivision 5 — Staff, consultants and contractors 257. Staff of National Authority 1 258. Staff seconded to National Authority 1 259. Consultants and contractors 1 Part 12 — Regulatory Authority 260. Functions of Regulatory Authority 1 261. Powers of Regulatory Authority 1 262. Delegations 1 Part 13 — Information, records and privacy Division 1 — Privacy 263. Application of Commonwealth Privacy Act 1 Division 2 — Application of Commonwealth FOI Act 264. Application of Commonwealth FOI Act 1 Division 3 — Application of New South Wales State Records Act 265. Application of State Records Act 1 Division 4 — Registers 266. Register of approved providers 1 267. Register of education and care services 1 269. Register of family day care educators, co‑ordinators and assistants 1 Division 5 — Publication of information 270. Publication of information 1 Division 6 — Disclosure of information 271. Disclosure of information to other authorities 1 272. Disclosure of information to education and care services 1 273. Duty of confidentiality 1 Part 14 — Miscellaneous Division 1 — Finance 274. Australian Children's Education and Care Quality Authority Fund 1 275. Payments into Authority Fund 1 276. Payments out of Authority Fund 1 277. Investment of money in Authority Fund 1 278. Financial management duties of National Authority 1 Division 2 — Reporting 279. Annual report 1 280. Tabling and publication of annual report 1 281. Other reporting 1 Division 3 — Application of Commonwealth Ombudsman Act 282. Application of Commonwealth Ombudsman Act 1 Division 4 — Legal proceedings 283. Who may bring proceedings for an offence? 1 284. When proceedings may be brought 1 285. Offences by bodies corporate 1 286. Application of Law to partnerships and eligible associations and other entities 1 287. Multiple holders of an approval 1 288. Double jeopardy 1 289. Immunity 1 290. Immunity — education law 1 291. Infringement offences 1 292. Evidentiary certificates 1 Division 5 — Service of notices 293. Service of notices 1 294. Service by post 1 Division 6 — False or misleading information 295. False or misleading information or documents 1 Division 7 — Protection from reprisal 296. Definitions 1 297. Protection from reprisal 1 298. Proceedings for damages for reprisal 1 299. Application for injunction or order 1 300. Injunction or order 1 Division 8 — National regulations 301. National regulations 1 302. Publication of national regulations 1 303. Parliamentary scrutiny of national regulations 1 304. Effect of disallowance of national regulation 1 Part 15 — Transitional provisions Division 1 — Introductory 305. Definitions 1 Division 2 — Education and care services 306. Approved provider 1 307. Service approvals 1 308. Approved family day care venues 1 309. Approval of declared out of scope services 1 310. Application for service waiver or temporary waiver 1 311. Existing applicants 1 312. Existing multiple approvals to merge 1 313. Display of accreditation and rating 1 314. Effect of non‑compliance in 3 years before scheme commencement day 1 315. Certified supervisors 1 316. Nominated supervisors 1 317. Notices and undertakings 1 318. Offences 1 Division 3 — National Authority 319. First meeting of National Authority 1 320. First chief executive officer of National Authority 1 321. First annual report of National Authority 1 Division 4 — General 322. Information retention and sharing 1 323. Approved learning framework 1 324. Savings and transitional regulations 1 Division 5 — Transitional provisions — Education and Care Services National Law (WA) Amendment Act 2018 325. Definitions 1 326. Approved family day care venues 1 327. Declared approved family day care venues continue to be approved 1 328. Service approval condition requiring sufficient family day care co‑ordinators 1 329. Service approval condition requiring minimum number of family day care co‑ordinators 1 330A. Repeal of show cause notice if written notice not given before commencement day 1 330B. Effect of decisions made before commencement day under repealed section 125 1 330C. Continuation of reviews of decisions relating to supervisor certificates in particular circumstances 1 Division 6 — Further transitional provisions — Education and Care Services National Law (WA) Amendment Act 2018 332. Definitions 1 333. Partial assessment and re‑rating 1 334. Application for highest rating level made before commencement day 1 335. Highest rating level awarded before, or on application made before, commencement day 1 Schedule 1 — Miscellaneous provision relating to interpretation Part 1 — Preliminary 1. Displacement of Schedule by contrary intention 1 Part 2 — General 2. Law to be construed not to exceed legislative power of Legislature 1 3. Every section to be a substantive enactment 1 4. Material that is, and is not, part of this Law 1 5. References to particular Acts and to enactments 1 6. References taken to be included in Act or Law citation etc 1 7. Interpretation best achieving Law's purpose 1 8. Use of extrinsic material in interpretation 1 9. Effect of change of drafting practice and use of examples 1 10. Use of examples 1 11. Compliance with forms 1 11A. Penalty at end of provision 1 Part 3 — Terms and references 12. Definitions 1 13. Provisions relating to defined terms and gender and number 1 14. Meaning of "may" and "must" etc. 1 15. Words and expressions used in statutory instruments 1 16. Effect of express references to bodies corporate and individuals 1 17. Production of records kept in computers etc. 1 18. References to this jurisdiction to be implied 1 19. References to officers and holders of offices 1 20. Reference to certain provisions of Law 1 21. Reference to provisions of this Law or an Act is inclusive 1 Part 4 — Functions and powers 22. Performance of statutory functions 1 23. Power to make instrument or decision includes power to amend or repeal 1 24. Matters for which statutory instruments may make provision 1 25. Presumption of validity and power to make 1 26. Appointments may be made by name or office 1 27. Acting appointments 1 28. Powers of appointment imply certain incidental powers 1 29. Delegation of functions 1 30. Exercise of powers between enactment and commencement 1 Part 5 — Distance, time and age 31. Matters relating to distance, time and age 1 Part 6 — Effect of repeal, amendment or expiration 32. Time of Law ceasing to have effect 1 33. Repealed Law provisions not revived 1 34. Saving of operation of repealed Law provisions 1 35. Continuance of repealed provisions 1 36. Law and amending Acts to be read as one 1 Part 7 — Instruments under Law 37. Schedule applies to statutory instruments 1 Part 8 — Application to coastal sea 38. Application 1 Schedule 2 — Powers of entry by search warrant 1. Application for warrant 1 2. Issue of warrant 1 3. Application by electronic communication 1 4. Procedure before entry under warrant 1 5. Powers after entering premises 1 Notes Compilation table 1 Uncommenced provisions table 1 Other notes 1 Defined terms Western Australia Education and Care Services National Law (WA) Act 2012 An Act to — * provide for a national scheme regarding the regulation of education and care services for children; and * make consequential and other amendments to various other Acts, and for related purposes. Part 1 — Preliminary 1. Short title This is the Education and Care Services National Law (WA) Act 2012. 2. Commencement This Act comes into operation as follows — (a) sections 1 and 2 — on the day on which this Act receives the Royal Assent (assent day); (b) Part 4 Division 3 — (i) on a day fixed by proclamation; or (ii) if the day fixed under subparagraph (i) is before the day on which the Health, Safety and Civil Liability (Children in Schools and Child Care Services) Act 2011 Part 2 (Part 2) comes into operation — immediately after Part 2 comes into operation; (c) the rest of the Act — on a day fixed by proclamation, and different days may be fixed for different provisions. 3. Terms used (1) For the purposes of this Act, the local application provisions of this Act are the provisions of this Act other than the Education and Care Services National Law set out in the Schedule. (2) In the local application provisions of this Act — Education and Care Services National Law (Western Australia) means the provisions applying in this jurisdiction because of section 4. (3) If a term is given a meaning in the Education and Care Services National Law set out in the Schedule, it has the same meaning in the local application provisions of this Act. Part 2 — Application of Education and Care Services National Law 4. Application of the Education and Care Services National Law The Education and Care Services National Law set out in the Schedule — (a) applies as a law of this jurisdiction; and (b) as so applying, may be referred to as the Education and Care Services National Law (Western Australia); and (c) as so applying, is part of this Act. 5. Exclusion of legislation of this jurisdiction (1) Except as provided in section 17, the following Acts of this jurisdiction do not apply to the Education and Care Services National Law (Western Australia) or to the instruments made under that Law — (a) the Freedom of Information Act 1992; (b) the Interpretation Act 1984. (2) The following Acts of this jurisdiction do not apply to the Education and Care Services National Law (Western Australia) or to the instruments made under that Law, except to the extent that that Law and those instruments apply to the Regulatory Authority and the employees, decisions, actions and records of the Regulatory Authority — (a) the Auditor General Act 2006; (b) the Financial Management Act 2006; (c) the Parliamentary Commissioner Act 1971; (d) the Public Sector Management Act 1994; (e) the State Records Act 2000. 6. Meaning of generic terms in Education and Care Services National Law for the purposes of this jurisdiction In the Education and Care Services National Law (Western Australia) — child protection law means the Children and Community Services Act 2004; court means the Magistrates Court of Western Australia established under the Magistrates Court Act 2004; de facto relationship has the meaning given in the Interpretation Act 1984 section 13A; local authority means a local government established under the Local Government Act 1995; magistrate means — (a) a magistrate within the meaning of the Magistrates Court Act 2004; or (b) a justice of the peace; public authority has the meaning given in the Child Care Services Act 2007 section 3; registered teacher has the meaning given in the Teacher Registration Act 2012 section 3; superior court means the Supreme Court of Western Australia; this jurisdiction means Western Australia. [Section 6 amended: No. 18 of 2018 s. 4.] 7. Relevant tribunal or court For the purposes of the definition of relevant tribunal or court in the Education and Care Services National Law (Western Australia) section 5, the State Administrative Tribunal is declared to be the relevant tribunal or court for this jurisdiction for the purposes of that Law. 8. Regulatory Authority For the purposes of the definition of Regulatory Authority in the Education and Care Services National Law (Western Australia) section 5, the chief executive officer of the department principally assisting in the administration of the Child Care Services Act 2007 is declared to be the regulatory authority for this jurisdiction for the purposes of that Law. 9. Children's services law (1) For the purposes of the definition of children's services law in the Education and Care Services National Law (Western Australia) section 5, the Child Care Services Act 2007 and the regulations made under that Act are declared to be a children's services law for this jurisdiction for the purposes of that Law. (2) For the purposes of the definition of children's services regulator in the Education and Care Services National Law (Western Australia) section 5, the chief executive officer of the department principally assisting in the administration of the Child Care Services Act 2007 is declared to be a children's services regulator for this jurisdiction for the purposes of that Law. 10. Education law For the purposes of the definition of education law in the Education and Care Services National Law (Western Australia) section 5, the School Education Act 1999 and the regulations made under that Act and the Teacher Registration Act 2012 and the regulations made under that Act are declared to be an education law for this jurisdiction for the purposes of that Law. [Section 10 amended: No. 18 of 2018 s. 5.] 11. Former education and care services law For the purposes of the definition of former education and care services law in the Education and Care Services National Law (Western Australia) section 5, the Child Care Services Act 2007 and the regulations made under that Act (both as in force immediately before the commencement of the Education and Care Services National Law (Western Australia) Part 3) are declared to be a former education and care services law for this jurisdiction for the purposes of that Law. 12. Infringements law For the purposes of the definition of infringements law in the Education and Care Services National Law (Western Australia) section 5, the Criminal Procedure Act 2004 Part 2 and the regulations made for the purposes of that Part of that Act are declared to be an infringements law for this jurisdiction for the purposes of that Law. 13. Public sector law For the purposes of the definition of public sector law in the Education and Care Services National Law (Western Australia) section 5, the Public Sector Management Act 1994 and the regulations made under that Act are declared to be a public sector law for this jurisdiction for the purposes of that Law. 14. Working with children law For the purposes of the definition of working with children law in the Education and Care Services National Law (Western Australia) section 5, the Working with Children (Screening) Act 2004 and the regulations made under that Act are declared to be a working with children law for this jurisdiction for the purposes of that Law. [Section 14 amended: No. 47 of 2022 s. 53.] 15. Transitional (1) For the purposes of the definition of declared approved provider in the Education and Care Services National Law (Western Australia) section 305, a person who held a licence, other than a licence to provide a family day care service, under the Child Care Services Act 2007 is declared to be a declared approved provider for this jurisdiction for the purposes of that Law. (2) For the purposes of the definition of declared approved service in the Education and Care Services National Law (Western Australia) section 305, a service to which a licence to provide a child care service, other than a licence to provide a family day care service, applied under the Child Care Services Act 2007 is declared to be a declared approved service for this jurisdiction for the purposes of that Law. [(3) deleted] (4) For the purposes of the definition of declared nominated supervisor in the Education and Care Services National Law (Western Australia) section 305, the following persons are declared to be declared nominated supervisors for this jurisdiction for the purposes of that Law — (a) for a declared approved service, a person who was a supervising officer under the Child Care Services Act 2007 for that service; (b) for a declared out of scope service, a person recognised as the coordinator of the service by the National Childcare Accreditation Council Inc. (5) For the purposes of the definition of declared out of scope service in the Education and Care Services National Law (Western Australia) section 305, a service that — (a) was delivered through the use of 2 or more individuals who each held a licence to provide a family day care service under the Child Care Services Act 2007; and (b) provided education and care for children in residences whether or not the service also provided education and care to children at a place other than a residence, is declared to be a declared out of scope service for this jurisdiction for the purposes of that Law. (6) For the purposes of the definition of former approval in the Education and Care Services National Law (Western Australia) section 305, a licence to provide a child care service, other than a licence to provide a family day care service, under the Child Care Services Act 2007 is declared to be a former approval for this jurisdiction for the purposes of that Law. [Section 15 amended: No. 18 of 2018 s. 6.] Part 3 — Other local provisions 16. Tabling of annual report In addition to the requirements of the Education and Care Services National Law (Western Australia) section 280, the Minister must cause the annual report of the National Authority, and the report of the public sector auditor with respect to the financial statement in the report, to be laid before each House of the Western Australian Parliament as soon as is practicable after those reports have been tabled under that section. 17. National regulations under the WA national law Where regulations may be made under the Education and Care Services National Law (Western Australia) section 301 by the Governor — (a) the Governor means the Governor of Western Australia and includes the officer for the time being administering the Government of Western Australia; and (b) the Interpretation Act 1984 sections 41, 42 and 60 apply to, and in respect of the making of, regulations by the Governor under that section. 18. Review of Act (1) The Minister is to carry out a review of the operation and effectiveness of this Act as soon as is practicable after the expiration of 5 years from the commencement of this section. (2) The Minister is to prepare a report based on the review carried out under subsection (1) and is to cause the report to be laid before each House of the Western Australian Parliament as soon as is practicable after the report is prepared, and in any event, not later than 12 months after the requirement to carry out the review arose. [19. Deleted: No. 18 of 2018 s. 7(1).] [Part 4 (s. 20‑54) deleted: No. 18 of 2018 s. 8.] Schedule — Education and Care Services National Law [s. 4] Part 1 — Preliminary 1. Short title This Law may be cited as the Education and Care Services National Law. 2. Commencement This Law commences in a participating jurisdiction as provided under the Act of that jurisdiction that applies this Law as a law of that jurisdiction. 3. Objectives and guiding principles (1) The objective of this Law is to establish a national education and care services quality framework for the delivery of education and care services to children. (2) The objectives of the national education and care services quality framework are — (a) to ensure the safety, health and wellbeing of children attending education and care services; (b) to improve the educational and developmental outcomes for children attending education and care services; (c) to promote continuous improvement in the provision of quality education and care services; (d) to establish a system of national integration and shared responsibility between participating jurisdictions and the Commonwealth in the administration of the national education and care services quality framework; (e) to improve public knowledge, and access to information, about the quality of education and care services; (f) to reduce the regulatory and administrative burden for education and care services by enabling information to be shared between participating jurisdictions and the Commonwealth. (3) The guiding principles of the national education and care services quality framework are as follows — (a) that the best interests of the child are paramount; (b) that children are successful, competent and capable learners; (c) that the principles of equity, inclusion and diversity underlie this Law; (d) that Australia's Aboriginal and Torres Strait Islander cultures are valued; (e) that the role of parents and families is respected and supported; (f) that best practice is expected in the provision of education and care services. Note: This section differs from section 3 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria). 4. How functions to be exercised An entity that has functions under this Law is to exercise its functions having regard to the objectives and guiding principles of the national education and care services quality framework set out in section 3. 5. Definitions (1) In this Law — approved education and care service means an education and care service for which a service approval exists; approved family day care service means an approved education and care service that is a family day care service; approved family day care venue means a place (other than a residence) approved under section 50A or 54(8A) as a family day care venue for an approved family day care service; approved learning framework means a learning framework approved by the Ministerial Council; approved provider means a person who holds a provider approval; associated children's service means a children's service that is operated or intended to be operated by an approved provider at the same place as an approved education and care service; Australian Accounting Standards means the standards issued or pronounced by the Australian Accounting Standards Board; authorised officer means a person authorised to be an authorised officer under Part 9; Authority Fund means the Australian Children's Education and Care Quality Authority Fund established under section 274; Board means the Australian Children's Education and Care Quality Authority Board established under this Law; chief executive officer means the chief executive officer of the National Authority appointed under this Law; children's service means a service providing or intended to provide education and care on a regular basis to children under 13 years of age that is primarily regulated under a children's services law of a participating jurisdiction and is not an education and care service; children's services law, in relation to a participating jurisdiction, means a law declared by a law of that jurisdiction to be a children's services law for the purposes of this Law; children's services regulator, in relation to a participating jurisdiction, means a person declared by a law of that jurisdiction to be the children's services regulator for the purposes of this Law; Commonwealth Minister means the Minister of the Commonwealth who is responsible for policies and programs relating to education and care services; community kindergarten means a kindergarten registered under the School Education Act 1999 Part 5: compliance direction means a compliance direction under section 176; compliance notice means a compliance notice under section 177; disciplinary action means disciplinary action under Part 7 Division 3A; education and care service means any service providing or intended to provide education and care on a regular basis to children under 13 years of age other than — (a) a school providing an educational program to school children in accordance with the School Education Act 1999; or (b) a community kindergarten providing an educational program to children in accordance with the School Education Act 1999; or (c) a personal arrangement; or (d) a service principally conducted to provide instruction in a particular activity; or Example: Instruction in a particular activity could be instruction in sport, dance, music, culture or language or religious instruction. (e) a service providing education and care to patients in a hospital or patients of a medical or therapeutic care service; or (f) care provided under a child protection law of a participating jurisdiction; or (g) a prescribed class of disability service; or (h) a service of a prescribed class; Example: Education and care services to which this Law applies include long day care services, family day care services and outside school hours services, unless expressly excluded. education and care service premises means — (a) in relation to an education and care service other than a family day care service, each place at which an education and care service operates or is to operate; or (b) in relation to a family day care service — (i) an office of the family day care service; or (ii) an approved family day care venue; or (iii) each part of a residence used to provide education and care to children as part of a family day care service or used to provide access to the part of the residence used to provide that education and care; education law, in relation to a participating jurisdiction, means a law declared by a law of that jurisdiction to be an education law for the purposes of this Law; educational program means an educational programme as defined in the School Education Act 1999; educator means an individual who provides education and care for children as part of an education and care service; eligible association means an association of a prescribed class; executor, in relation to an approved provider, includes a person — (a) entitled to a grant of letters of administration in relation to the estate of the approved provider, including with the will annexed; or (b) granted letters of administration in relation to the estate of the approved provider, including with the will annexed; or (c) granted probate of the will of the approved provider; or (d) named as executor in a valid will of the approved provider; Note: This definition is not included in section 5 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria). family day care co‑ordinator means a person employed or engaged by an approved provider of a family day care service to monitor and support the family day care educators who are part of the service; family day care educator means an educator engaged by or registered with a family day care service to provide education and care for children in a residence or at an approved family day care venue; family day care educator assistant means a person engaged by or registered with a family day care service to assist family day care educators; family day care residence means a residence at which a family day care educator educates and cares for children as part of a family day care service; family day care service means an education and care service that — (a) is delivered through the use of 2 or more educators to provide education and care to children; and (b) operates from 2 or more residences; Note: A family day care service that is an approved family day care service may provide education and care to children from a family day care residence or an approved family day care venue. family member, in relation to a child, means — (a) a parent, grandparent, brother, sister, uncle, aunt, or cousin of the child, whether of the whole blood or half‑blood and whether that relationship arises by marriage (including a de facto relationship) or by adoption or otherwise; or (b) a relative of the child according to Aboriginal or Torres Strait Islander tradition; or (c) a person with whom the child resides in a family‑like relationship; or (d) a person who is recognised in the child's community as having a familial role in respect of the child; former education and care services law, in relation to a participating jurisdiction, means a law declared by a law of that jurisdiction to be a former education and care services law for the purposes of this Law; grade 1, in relation to a school, means the first year of compulsory full‑time schooling; guardian, in relation to a child, means the legal guardian of the child; infringements law, in relation to a participating jurisdiction, means a law declared by a law of that jurisdiction to be an infringements law for the purposes of this Law; Ministerial Council means the Ministerial Council which — (a) is constituted from time to time by Ministers of the Crown of the Commonwealth, State and Territory Governments; and (b) is responsible for early childhood education and care matters; National Authority means the Australian Children's Education and Care Quality Authority established under this Law; national education and care services quality framework means — (a) this Law; and (b) the national regulations; and (c) the National Quality Standard; and (d) the prescribed rating system; National Partnership Agreement means the National Partnership Agreement on the National Quality Agenda for Early Childhood and Care entered into by the States and Territories and the Commonwealth on 7 December 2009, as amended from time to time; National Quality Framework means the national education and care services quality framework; National Quality Standard means the National Quality Standard prescribed by the national regulations; national regulations means the regulations made under this Law; nominated supervisor, in relation to an education and care service, means an individual who — (a) is nominated by the approved provider of the service under Part 3 to be a nominated supervisor of that service; and (b) unless the individual is the approved provider, has provided written consent to that nomination; Note: An individual may be both a nominated supervisor of a family day care service and a family day care co‑ordinator for that service if the individual meets the criteria for each role. office, in relation to a family day care service, means — (a) the principal office of the service; or (b) the principal office of the approved provider of the service; or (c) any other business office of the approved provider of the service; or (d) any premises of the service from which the service's family day care educators are co‑ordinated; parent, in relation to a child, means a person who at law has responsibility for — (a) the long term care, welfare and development of the child; or (b) the day‑to‑day care, welfare and development of the child; participating jurisdiction means a State or Territory in which — (a) this Law applies as a Law of the State or Territory; or (b) a law that substantially corresponds to the provisions of this Law has been enacted; payment, in relation to a prescribed fee, includes payment by electronic or other means; person means — (a) an individual; or (b) a body corporate; or (c) an eligible association; or (d) a partnership; or (e) a prescribed entity; person in day‑to‑day charge, in relation to an education and care service, means a person who is placed in day‑to‑day charge of the service in accordance with the national regulations; person with management or control, in relation to an education and care service, means — (a) if the provider or intended provider of the service is a body corporate, an officer of the body corporate within the meaning of the Corporations Act 2001 of the Commonwealth who is responsible for managing the delivery of the education and care service; or (b) if the provider of the service is an eligible association, each member of the executive committee of the association who has the responsibility, alone or with others, for managing the delivery of the education and care service; or (c) if the provider of the service is a partnership, each partner who has the responsibility, alone or with others, for managing the delivery of the education and care service; or (d) in any other case, a person who has the responsibility, alone or with others, for managing the delivery of the education and care service; personal arrangement means education and care provided to a child — (a) by a family member or guardian of a child personally, otherwise than as a staff member of, or under an engagement with, a service providing education and care on a regular basis to children under 13 years of age; or (b) by a friend of the family of the child personally under an informal arrangement where no offer to provide that education and care was advertised; prescribed ineligible person means a person in a class of persons prescribed by the national regulations to be prescribed ineligible persons; prohibition notice means a prohibition notice given under section 182(1) or 182(3); protected disclosure — see section 296; provider approval means a provider approval — (a) granted under Part 2 of this Law or this Law as applying in another participating jurisdiction; and (b) as amended under this Law or this Law as applying in another participating jurisdiction — but does not include a provider approval that has been cancelled; public sector law, in relation to a participating jurisdiction, means a law declared by a law of that jurisdiction to be a public sector law for the purposes of this Law; rating assessment means an assessment or reassessment of an approved education and care service under Part 5; Ratings Review Panel means a Ratings Review Panel established under section 146; receiving approved provider has the meaning set out in section 58; Regulatory Authority means a person declared by a law of a participating jurisdiction to be the Regulatory Authority for that jurisdiction or for a class of education and care services for that jurisdiction; relevant Commonwealth Department means the government department administered by the Commonwealth Minister; relevant tribunal or court, in relation to a participating jurisdiction, means the tribunal or court declared by a law of that jurisdiction to be the relevant tribunal or court for the purposes of this Law or a provision of this Law; residence means the habitable areas of a dwelling; school children, includes students, as defined in the School Education Act 1999, attending school before grade 1; school means — (a) a government school; or (b) a non‑government school that is registered or accredited under an education law of a participating jurisdiction; serious detrimental action — see section 296; serious incident means an incident or class of incidents prescribed by the national regulations as a serious incident; service approval means a service approval — (a) granted under Part 3 of this Law or this Law as applying in another participating jurisdiction; and (b) as amended under this Law or this Law as applying in another participating jurisdiction — but does not include a service approval that has been cancelled; staff member, in relation to an education and care service, means any individual (other than a nominated supervisor or a volunteer) employed, appointed or engaged to work in or as part of an education and care service, whether as family day care co‑ordinator, educator or otherwise; transferring approved provider has the meaning set out in section 58; working with children card means a card issued to a person under a working with children law of a participating jurisdiction that permits that person to work with children; working with children check means a notice, certificate or other document granted to, or with respect to, a person under a working with children law to the effect that — (a) the person has been assessed as suitable to work with children; or (b) there has been no information that if the person worked with children the person would pose a risk to the children; or (c) the person is not prohibited from attempting to obtain, undertake or remain in child‑related employment; working with children law, in relation to a participating jurisdiction, means a law declared by a law of that jurisdiction to be a working with children law for the purposes of this Law; working with vulnerable people law, in relation to a participating jurisdiction, means a law declared by a law of that jurisdiction to be a working with vulnerable people law for the purposes of this Law. (2) In this Law, a reference (either generally or specifically) to a law or a provision of a law (including this Law) includes a reference to the statutory instruments made or in force under the law or provision. (3) In this Law a reference to education and care includes a reference to education or care. (4) In this Law, an education and care service as defined in subsection (1) is an education and care service even if the service also provides education and care to children of or over the age of 13 years. (5) In this Law, a children's service as defined in subsection (1) is a children's service even if the service also provides education and care to children of or over the age of 13 years. (6) In this Law, a reference to this Law as applying in a jurisdiction, includes a reference to a law that substantially corresponds to this Law enacted, or applying, in a jurisdiction. Note: This section differs from section 5 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria). [Section 5 amended: No. 18 of 2018 s. 10.] 6. Interpretation generally (1) Schedule 1 applies in relation to this Law. (2) The National Partnership Agreement is declared to be a relevant document for the purposes of paragraph (h) of the definition of extrinsic material in clause 8(1) of Schedule 1. 7. Single national entity (1) It is the intention of the Parliament of this jurisdiction that this Law as applied by an Act of this jurisdiction, together with this Law as applied by Acts of other participating jurisdictions, has the effect that an entity established by this Law is one single national entity, with functions conferred by this Law as so applied. (2) An entity established by this Law has power to do acts in or in relation to this jurisdiction in the exercise of a function expressed to be conferred on it by this Law as applied by Acts of each participating jurisdiction. (3) An entity established by this Law may exercise its functions in relation to — (a) one participating jurisdiction; or (b) 2 or more or all participating jurisdictions collectively. 8. Extraterritorial operation of Law It is the intention of the Parliament of this jurisdiction that the operation of this Law is to, as far as possible, include operation in relation to the following — (a) things situated in or outside the territorial limits of this jurisdiction; (b) acts, transactions and matters done, entered into or occurring in or outside the territorial limits of this jurisdiction; (c) things, acts, transactions and matters (wherever situated, done, entered into or occurring) that would, apart from this Law, be governed or otherwise affected by the law of another jurisdiction. 9. Law binds the State (1) This Law binds the State. (2) In this section — State means the Crown in right of this jurisdiction, and includes — (a) the Government of this jurisdiction; and (b) a Minister of the Crown in right of this jurisdiction; and (c) a statutory corporation, or other entity, representing the Crown in right of this jurisdiction. Part 2 — Provider approval Division 1 — Application for provider approval 10. Application for provider approval (1) A person, other than a prescribed ineligible person, may apply to the Regulatory Authority for a provider approval. (2) An application may be made by more than one person. (3) If an application is made by more than one person — (a) the prescribed information requested under section 11(c) must be provided in respect of each person; and (b) the requirements of this Division must be complied with by and in respect of each person. Note: This section differs from section 10 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria). 11. Form of application An application under section 10 must — (a) be made to the Regulatory Authority of the participating jurisdiction — (i) in which the applicant, or any of the applicants, is ordinarily resident; or (ii) if the applicant or applicants are not individuals, in which the principal office of the applicant or any of the applicants is located; and (b) be in writing; and (c) include the prescribed information that is requested by the Regulatory Authority; and (d) include payment of the prescribed fee. Note: This section differs from section 11 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria). [Section 11 amended: No. 18 of 2018 s. 90.] 12. Applicant must be fit and proper person (1) An applicant who is an individual must satisfy the Regulatory Authority that the applicant is a fit and proper person to be involved in the provision of an education and care service. (2) If the applicant is not an individual, the applicant must satisfy the Regulatory Authority that — (a) each person who will be a person with management or control of an education and care service to be operated by the applicant is a fit and proper person to be involved in the provision of an education and care service; and (b) the applicant is a fit and proper person to be involved in the provision of an education and care service. (3) The head of a government department administering an education law of a participating jurisdiction is taken to be a fit and proper person for the purposes of this Part. 13. Matters to be taken into account in assessing whether fit and proper person (1) In determining whether a person is a fit and proper person under this Division, the Regulatory Authority must have regard to — (a) the person's history of compliance with — (i) this Law as applying in any participating jurisdiction; and (ii) a former education and care services law of a participating jurisdiction; and (iii) a children's services law of a participating jurisdiction; and (iv) an education law of a participating jurisdiction; and Note: If a person has been served with an infringement notice for an offence under this Law, and the person has paid the penalty, the Regulatory Authority cannot consider that conduct when determining whether the person is fit and proper. See section 291(5). (b) any decision under a former education and care services law, a children's services law or an education law of a participating jurisdiction to refuse, refuse to renew, suspend or cancel a licence, approval, registration or certification or other authorisation granted to the person under that law; and (c) either — (i) any prescribed matters relating to the criminal history of the person to the extent that history may affect the person's suitability for the role of provider of an education and care service; or (ii) any check of the person under a working with vulnerable people law of a participating jurisdiction; and (d) whether the person is bankrupt, or has applied to take the benefit of any law for the relief of bankrupt or insolvent debtors or, in the case of a body corporate, is insolvent under administration or an externally‑administered body corporate. (2) Without limiting subsection (1), the Regulatory Authority may have regard to — (a) whether the person has a medical condition that may cause the person to be incapable of being responsible for providing an education and care service in accordance with this Law; and (b) whether the financial circumstances of the person may significantly limit the person's capacity to meet the person's obligations in providing an education and care service in accordance with this Law; and (c) whether the person has the management capability to operate an education and care service in accordance with this Law; and (d) any of the following actions taken under the A New Tax System (Family Assistance) (Administration) Act 1999 of the Commonwealth in relation to a child care service approved under that Act, operated by the person or in relation to which the person was a person with management or control — (i) any sanction imposed under section 200 of that Act; (ii) any suspension imposed under section 201A of that Act; (iii) any infringement notice given under section 219TSI of that Act. (3) Nothing in subsection (1) or (2) limits the circumstances in which a person may be considered not to be a fit and proper person to be involved in the provision of an education and care service. [Section 13 amended: No. 18 of 2018 s. 11.] 14. Regulatory Authority may seek further information (1) For the purpose of carrying out an assessment as to whether a person is a fit and proper person, the Regulatory Authority may — (a) ask the person to provide further information; and (b) undertake inquiries in relation to the person. (2) If the Regulatory Authority asks the applicant for further information under this section, the period from the making of the request until the provision of the further information is not included in the period referred to in section 15 for the Regulatory Authority to make a decision on the application. [Section 14 amended: No. 18 of 2018 s. 12.] 15. Grant or refusal of provider approval (1) On an application under section 10, the Regulatory Authority may — (a) grant the provider approval; or (b) refuse to grant the provider approval. Note: A provider approval is granted subject to conditions in accordance with section 19. (2) The Regulatory Authority must not grant a provider approval unless the Authority is satisfied as to the matters in section 12. (3) Subject to subsection (4), the Regulatory Authority must make a decision on the application within 60 days after the Regulatory Authority receives the application. Note: If further information is requested under section 14(2), the period between the making of the request and the provision of the information is not included in the 60 day period. (4) The period referred to in subsection (3) may be extended by up to 30 days with the agreement of the applicant. (5) The Regulatory Authority is taken to have refused to grant a provider approval if the Regulatory Authority has not made a decision under subsection (1) — (a) within the relevant period required under subsection (3); or (b) within the period extended under subsection (4), as the case requires. 16. Notice of decision on application The Regulatory Authority must give written notice to the applicant of a decision under section 15 and the reasons for that decision within 7 days after the decision is made. 17. Duration of provider approval A provider approval granted under section 15 continues in force until — (a) it is cancelled or surrendered under this Law, or this Law as applying in a participating jurisdiction; or (b) if the provider approval is granted to an individual — the individual dies. Note: This section differs from section 17 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria). [Section 17 amended: No. 18 of 2018 s. 13.] 18. Effect of provider approval A provider approval authorises the approved provider to operate an approved education and care service and an associated children's service if the approved provider is the holder of the service approval for those services. 19. Conditions on provider approval (1) A provider approval may be granted subject to any conditions that are prescribed in the national regulations or that are determined by the Regulatory Authority. (2) Without limiting subsection (1), a provider approval is subject to the condition that the approved provider must comply with this Law. (3) A condition of a provider approval applies to the provider as the operator of any education and care service or associated children's service, unless the condition expressly provides otherwise. (4) An approved provider must comply with the conditions of the provider approval. Penalty: $10 000, in the case of an individual. $50 000, in any other case. 20. Copy of provider approval If the Regulatory Authority grants a provider approval under this Part, the Regulatory Authority must provide a copy of the provider approval to the approved provider stating — (a) the name of the approved provider; and (b) if the approved provider is not an individual, the address of the principal office of the provider; and (c) any conditions to which the approval is subject; and (d) the date that the provider approval was granted; and (e) the provider approval number; and (f) any other prescribed matters. Division 2 — Reassessment 21. Reassessment of fitness and propriety (1) The Regulatory Authority may at any time assess — (a) whether an approved provider continues to be a fit and proper person to be involved in the provision of an education and care service; or (b) whether a person with management or control of an education and care service operated by an approved provider continues to be a fit and proper person to be involved in the provision of an education and care service; or (c) whether a person who becomes a person with management or control of an education and care service operated by the approved provider after the grant of the provider approval is a fit and proper person to be involved in the provision of an education and care service. (2) Sections 13 and 14 apply to the reassessment. Division 3 — Amendment of provider approvals 22. Amendment of provider approval on application (1) An approved provider may apply to the Regulatory Authority for an amendment of the provider approval. (2) The application must — (a) be in writing; and (b) include the prescribed information that is requested by the Regulatory Authority; and (c) include payment of the prescribed fee. (3) The Regulatory Authority must decide the application by — (a) amending the provider approval in the way applied for; or (b) with the applicant's written agreement, amending the provider approval in another way; or (c) refusing to amend the provider approval. (4) The Regulatory Authority must make a decision on the application within 30 days after the Regulatory Authority receives the application. (5) Without limiting subsection (3), an amendment may vary a condition of the provider approval or impose a new condition on the provider approval. Note: This section differs from section 22 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria). [Section 22 amended: No. 18